Key ESG Developments – December 2021
The Climate Delegated Act was published
On December 9th the first part of the EU Taxonomy, the Climate Delegated Act, was published in the Official Journal of the European Union as the Commission Delegated Regulation (EU) 2021/2139. The Act will enter into force on December 29th and should be applied from January 1st 2022. The Delegated Regulation supplements the Taxonomy Regulation by “establishing the technical screening criteria for determining the conditions under which an economic activity qualifies as contributing substantially to climate change mitigation or climate change adaptation and for determining whether that economic activity causes no significant harm to any of the other environmental objectives”.
The Dutch Government announces a National Corporate Due Diligence legislation
The Dutch minister of Foreign Trade and Development, De Bruijn, announced that the Dutch Government intends to table a domestic law on mandatory human rights and environmental due diligence. The Dutch Government published a non-paper outlining the Dutch position on mandatory due diligence.
Postponement of EC Draft Directive on Sustainable Governance
The release of the text of the Draft Directive of the European Commission on Sustainable Corporate Government has been postponed to the first trimester of 2022.
Criminal complaint against Dutch and US brands for complicity in forced labour
In the begin of December, the European Center for Constitutional Rights (ECCHR), filed a criminal complaint in the Netherlands against Patagonia, Nike, C&A and State of Art on the basis of allegations of complicity in the use of forced labour of the Uyghur community in China’s Xinjiang province. This complaint is part of a series of criminal complaints in Europe targeting European companies with connections to the Xinjiang province. Similar complaints have already been filed in Germany and France.
The Court of Appeal of Versailles confirms the jurisdiction of civil courts on the climate legislation against total
In December 2019, 14 French local authorities, together with the 5 French and Ugandan NGOs sought an injunction against French oil & gas company Total. The claim was filed on the basis of the French Duty of Vigilance Law as well as on the new Article 1252 of the French Civil Code – which gives the judge the power to order measures to cease or prevent environmental damage – on the grounds that Total’s vigilance plan “does not ensure that [the company] aligns with a trajectory compatible with the objectives of the Paris Agreement” and requested the court order to require Total to “take adequate measures to prevent the risks arising from its activities, by drastically reducing its greenhouse gas emissions”. Total challenged the jurisdiction of civil courts and requested for the case to be referred to the commercial courts. On the 11th of February 2021, the Tribunal Judiciaire de Nanterre confirmed its jurisdiction over the claim and affirmed that the claimants as ‘non-traders’ had the options to choose to bring their claim before the civil courts or the commercial courts. On the 18th of November, the Court of Appeal of Versailles confirmed the judgement of the first instance judge.
Authors: Ana Carina Duarte, Rafaela Oliveira and Mariana Ferreira